Section 71 Race Relations Act
23rd March 2010
As a result of the recent Supreme Court decision relating to race discrimination in the context of admissions to maintained faith schools, it is clear that any school that is proposing to give priority based on either membership or practice of the faith in question must comply with the requirements of S.71 of the Race Relations Act 1976 and consider what the impact of a policy that gave such priority would have on race relations and equality of treatment between different racial groups. To assist in the process, we have produced a short guidance note below which we hope will be helpful.
A Note for Governing Bodies of Faith Schools
When considering the 2011/2012 admission policy, governing bodies of all faith schools must have due regard to the matters stated in section 71 of the Race Relations Act 1976, namely, the need to
(a) eliminate unlawful racial discrimination; and
(b) promote equality of opportunity and good relations between persons of different racial groups.
The governing body must be able to show that it has met this duty and the way to do this is to carry out an assessment which will judge the impact that a particular activity or decision will have on racial grounds and equal opportunity. Without this, it will be very difficult – if not impossible – for a governing body to show that they have complied with their statutory duty. Recent court decisions have demonstrated that the courts regard this as a substantive matter and not a “rubber stamp” exercise.
Faith Schools
It is lawful for a faith school (i.e. a school designated with a religious character) to put in place reasonable admission criteria which, in the event of over-subscription, give admission priority on religious grounds. The governing body must still consider whether or not the giving of that priority would constitute discrimination on the grounds of race or ethnic origin. The criteria must not constitute direct discrimination on the grounds of race or ethnic origin and may only constitute justified, and therefore lawful, indirect discrimination in limited circumstances.
Direct Discrimination
Direct discrimination will only be an issue for those faith schools who wish to apply a membership, rather than a practice, test. If membership of the faith is defined by descent, whether matrilineal or patrilineal, as is the case with the Jewish and Sikh faiths, that test is likely to constitute direct racial discrimination and be unlawful. Direct discrimination cannot be justified, unlike indirect discrimination.
Indirect Discrimination
Indirect discrimination on the grounds of race or ethnic origin is unlawful unless it can be justified as a proportionate means of achieving a legitimate aim.
Accordingly, governing bodies need to consider whether, and to what extent, applying either a membership or a faith test will indirectly discriminate against racial groups who are less likely than others to meet the particular requirement. It is obvious that a Catholic school, whether it applies a test of baptism or of practice, will be favouring racial or ethnic groups that may be predominately Christian against other racial or ethnic groups who adhere to a different faith. Those who are not members of the favoured ethnic or racial group will by definition be at a disadvantage in gaining a place at the school. Therefore, as part of its S. 71 duty, the governing body needs to consider whether the criteria can be justified. The question to be answered is whether the test applied is a proportionate method (i.e. a method of conferring priority on children who practice Judaism) of achieving a legitimate aim?
What are the aims of the school?: Are they legitimate and (if so) why?
The governing body will need to have regard to its ethos and school mission statement. Those will presumably inform the wider community that the school is to be run in accordance with the tenets of the relevant faith and to preserve the ethos of that faith at the school. Such an aim is accepted as legitimate for a faith school. The key question, therefore, is whether a membership or practise test is a proportionate means of achieving that aim?
Assessing proportionality
The governing body needs to undertake an impact assessment, thereby demonstrating due regard to the need to eliminate racial discrimination. This needs to be done in the aftermath of the consultation period. The impact assessment should be presented to and considered by the governing body at the time, or before, the approval of the admission arrangements. The deadline for approval is 15th April 2010. By doing the impact assessment in advance the governing body ought to be able to reach a reasoned decision.
The Questions to be asked
We suggest the following might be relevant:-
1. Does the need for the measures outweigh the seriousness of any impact on any disadvantaged group?
2. What will be the impact that the policy would have on the disadvantaged group or groups?
3. What will be the adverse impact that would apply to the school if the policy was not in place?
4. How should the answers to 2 and 3 be balanced?
5. How does the guidance from the school’s religious authority (which the Governing body is legally required to have regard to) affect the position?
6. Can a different system, giving emphasis to different aspects of religious practice that can be measured objectively and without interview (in order to comply with the Admissions Code), be established that would have a materially different impact on the disadvantaged group?
7. Is it likely that the impact on the school of not having the admissions policy and the CRP as contemplated would outweigh the impact on the disadvantaged groups who will still be able to access mainstream education in other schools in the areas served by the school?
Record the alternatives that are considered and the reasons for saying that they do not materially alter the impact on the disadvantaged group or do not adequately meet the objectives of the school as previously identified. It is fundamental that a written record of the assessment of equality issues is kept.
The views of the stakeholders in a consultation exercise must be carefully considered and any points of relevance are taken into account with the reasons for discounting or adopting those points.
The Positive Duty of Equality of Opportunity
There is also a duty to promote equality of opportunity and this puts the onus on the governing body to consider whether the school can do anything more in its admissions process to address the ethnic groups disadvantaged by the policy and evaluate if the admissions policy could be modified in any way to reduce any such disadvantages. Again, record the issues that the governing body identifies and the conclusions that it reaches.
Generally, there is no particular form that has to be followed or completed. What matters is the ability of the governing body to demonstrate that it has had proper regard for the S. 71 duty. If its conclusions are rational and indicate due consideration, it is unlikely that a court would intervene.
Suggested Questions and possible Answers
What is the aim of the school?
Is the aim legitimate?
How is the school seeking to achieve that aim?
Are the measures necessary to achieve the aim?
How does the admissions policy achieve that aim?
How does that policy impact on other disadvantaged groups?
Can the admissions policy be modified to reduce the impact on those identified disadvantaged groups?
What has been the feedback from the consultation process?
For further information please contact Richard Gold (0208 4450609 richardgold@stoneking.co.uk).
